*233 The opinion of the Court was delivered at the present term by
Upon'the special verdict in this case, the judges in the Court below differed in opinion on two points, which are certified to this Court for a final decision:
1. Whether the plaintiffs were bound to show that Benjamin Sherrod recovered against Thomas B. Hill by title paramount to that derived from Hamilton, or the recovery itself was prima facie evidence of that fact ?
2. Whether the title shown by Thomas B. Hill under Hamilton was not so complete as to prove that Sherrod’s recovery could not be by title paramount ?
Upon the first point, this Court also is divided in opinion, and, therefore, no decision can be certified. But as we are unanimous on the second point, and an opinion on that finally disposes of the cause, it will now be pronounced.
From the date of Stewart’s deed to Hamilton, in October, 1771, until the commencement of the suit by Sherrod against Hill, in June, 1804, a period of thirty-three years, the land in controversy was in the exclusive possession of Hamilton, and those deriving title under him. A possession for such a length of time, under title, was, by the statute of limitations of North Carolina, a conclusive bar against any suit by any adverse claimant, unless he was within some one of the exceptions or disabilities provided for by that statute. a The special verdict in this case does *234 not find either that Sherrod was or was not Within, those exceptions or disabilities. The case, therefore, stands, in this respect, purely indifferent. By the general principles of law, the party who seeks to recover, upon the ground of his being within some exception of the statute of limitations, is bound to establish such exception by proof, for it will not be presumed by the law. In the suit by Sherrod against Hill, it would have been sufficient for the defendant to have relied upon the length of possession as a statutable bar to the action ; and the burthen of proof would have been upon Sherrod, to show that he was excepted from its operation. By analogy to the rule in that case, the proof of possession under title for thirty-three years, was presumptive evidence, and, in the absence of all conflicting evidence to remove the bar, conclusive evidence that the title of Hill, *235 under Hamilton, was so complete, that Sherrod’s recovery could, not have been by title paramount.
Certificate accordingly.
Notes
This statute, which was enacted in the year 1715, provides, (sec. 3.) “that no person or persons, or their heirs. *234 which hereafter shall have any right or title to any lands, tenements, or hereditaments, shall thereunto enter or make claim, but within seven years after his, her, or their right or title shall descend or accrue ; and in default thereof, such person or persons so not entering or making default, shall be utterly excluded and disabled from any'entry or claim thereafter to be made.” The 4th section contains the usual savings in favour of infants* &c., who are authorized, within three years after their disabilities shall cease “ to commence his or her suit, or make his or her entry.” Persons beyond seas are allowed eight years after their return: “ but that all possessions held without suing such claim-as aforesaid, shall be a perpetual bar against all and every manner of persons whatever, that the expectation of heirs may not, in a short time, leave much land unpossessed, and titles so perplexed' that no man will know from whom t# take or buy land.” Vide Patton’s lessee v. Easton, ante, vol. L |>. 476.